The Employment Appeal Tribunal has handed down its findings in two recent cases, both of which indicate that an employer should always take care when dismissing an employee on the back of a final warning. In both cases, flaws were found in the procedure the employers had followed when issuing the final warnings, and this led the Employment Appeal Tribunal to conclude that the employees had been unfairly dismissed.
In the case of Davies v Sandwell Metropolitan Council, the employer dismissed Mrs Davies on the basis of new allegations, coupled with the fact that she already had a final written warning. When Mrs Davies complained to the Tribunal about the circumstances leading up to her dismissal, she also complained about the procedure that had been followed in reaching the decision to issue her with a final warning. Mrs Davies did not appeal against the decision to issue her with a final warning at the time it was issued. However, the Employment Appeal Tribunal held that Mrs Davies’ failure to appeal against the final warning did not imply that she accepted that she deserved the penalty.
In the second case, Sakharkar v Northern Foods Grocery Group Ltd t/a Fox’s Biscuits, Mr Sakharkar was issued with a final written warning as a result of continued sickness absence and was finally dismissed for further sickness absence. The Employment Appeal Tribunal found that Northern Foods had incorrectly applied their capability procedure when they issued the final written warning. Therefore, they should not have issued the final written warning when they did and dismissal would not have been the next stage in the procedure. Again, Mr Sakharkar had not appealed against the employer’s decision to issue a final written warning at the time it was issued.
These cases highlight that each stage of a disciplinary or capability procedure is as important as the next – they are links in a chain. A fair procedure should be followed at each stage, and at each stage the sanction should be reasonable. Even where great care is taken with a final decision to dismiss, there is a risk that this may be deemed unfair if the employer has made an error at one of the earlier stages. From a practical point of view, when moving to dismiss, an employer should consider whether there have been any errors or concerns about the appropriateness of a final written warning before relying on it to dismiss.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243) 836840 or [email protected])